Sunday, May 27, 2012

BECAUSE SOMETIMES THEY PUT THE RUBBER HOSES AWAY AND CHEER THE BAD GUYS ON - The States Thumbing Their Noses at the Courts So They Can Kill People Edition

It's right there in the Constitution, the second clause of the Sixth Article. We call it the "Supremacy Clause."

This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.

And it's been settled (although sometimes unsettling) since Marbury v. Madison in 1803 that

[i]t is emphatically the province and duty of the judicial department to say what the law is.

Which would seem to put the decisions of the federal courts pretty clearly into the controlling power of the Supremacy Clause.

Jackson successfully defied the Court. States and communities that tried to defy orders to integrate their schools after Brown v. Board of Education, not so much (thanks, initially at least, to Eisenhower's grudging willingness to send in the national guard to enforce the Court's decisions). And despite much grumbling and dissatisfaction, and a promise by Newt to refuse to obey Supreme Court decisions should he be elected President (whew, dodged that bullet), when the courts decide something, it's to be obeyed.

The remedy isn't defiance, it's appeal to a higher court.

In Rhode Island, Governor Chafee will almost certainly be surrendering Jason Pleau to the feds so that they can try to kill him. After the back and forth and back ending in a loss before the First Circuit sitting en banc (opinion here), Chafee (and Pleau) asked the Supreme Court for a stay until they can get a ruling on their appeals. But Breyer, without opinion, turned them down. And, as I say, Pleau will almost certainly be given to the feds - maybe as soon as Tuesday.

That's the one part of the Rule of Law that tends really to count.

Remember, there was no insurrection after Bush v. Gore. Clinton didn't refuse to leave the White House. Gore didn't set up a separate government. No state has tried to secede since Appomatox.

And while there has certainly been plenty of defiance of general principles (see Arpaio, Joe, and County, Maricopa, for instance) once the dust settles and the courts order and the appeals are over, they kinda sorta, and with lots of muttering, pretend to do what they're told.

California on Friday joined other states in defying a federal government order to turn over a key execution drug.
. . .
U.S. District Judge Richard Leon in March ruled that the Food and Drug
Administration erred in allowing the prisons to import the foreign-made
drug. The judge ordered the FDA to confiscate all foreign-made sodium
thiopental and to warn prisons that it was now illegal to use the drug.
The FDA followed the Washington D.C.-based judge's order and sent demand
letters to prisons. But beginning with Nebraska on April 20, more than a
dozen states have refused to comply with the FDA order.

They're not just appealing. They're not seeking a stay pending appeal. They're just refusing.

Nyah, nyah. You can't make us.

California Department of Corrections and Rehabilitation lawyer Benjamin
Rice and the other states with foreign-bought sodium thiopental contend
they aren't bound by the ruling made by a federal judge in Washington
D.C.

Maybe. Maybe not.

But it isn't their decision to make.

Don't want to obey? Ask for a stay and appeal.

Is it a full-blown constitutional crisis. Maybe not full-blown. Court orders are, in fact, defied all the time. The typical remedy is to hold the person or entity in contempt, lock someone up, add daily and accumulating fines - maybe huge ones, until compliance.

It's not just an "argument.". It's a simple matter of black-letter civil procedure. (Issue- and claim-preclusion.). A single district judge (out of circuit, no less) cannot bind a non-party. That's why Judge Leon's order was directed at the FDA, not at the non-party states. He had no power over the states, and they are not violating any court order by refusing to follow the FDA's command. They may still be violating federal law -- but only if the FDA's order is valid -- and the FDA (which is appealing) seems, rather persuasively given the Supreme Court's Heckler v Chaney decision, to believe it is not.

If you want to get rid of the DP on the merits, by legislative enactment (as in Connecticut) or ballot initiative (California, soon), then good luck -- I support it. But hijacking and perverting basic civil procedure and administrative law doesn't work.

Useful sites

About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.